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Osborne v. Sprowls

OPINION FILED MARCH 31, 1981.

WILLARD DEAN OSBORNE, JR., A MINOR, APPELLEE,

v.

VICTOR SPROWLS, APPELLANT.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County, the Hon. Thomas Clydesdale, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

This is a negligence action. Plaintiff, Willard Dean (Skip) Osborne, Jr., sued defendant, Victor Sprowls, for injuries sustained in a collision late in the afternoon on September 25, 1975. One count of the complaint alleged negligence, and a second count alleged wilful and wanton misconduct. The trial court dismissed the latter count on defendant's motion for a directed verdict. The jury, empaneled in La Salle County, found for the plaintiff on the negligence count and assessed damages in the sum of $31,350. Defendant appealed, and a divided appellate court affirmed. (83 Ill. App.3d 968.) We granted leave to appeal and we now affirm. The damage assessment is not at issue.

Plaintiff was 13 years old, stood between 4 feet, 8 inches, and 5 feet tall and weighed 80 to 85 pounds on the date of the incident at issue. He was in the eighth grade of the local junior high school. On September 25, 1975, he and about 15 classmates worked on a school homecoming parade float after school for about 30 to 45 minutes. After they were finished for that day, Laura Cronin, one of the eighth graders working on the float, invited her classmates to her house for a pizza party. Her invitation was readily accepted. Most of those in attendance proceeded to her home.

After their arrival at the Cronin home, a game of tackle the football began. This game is an amalgamation of football, keep away, and soccer. Players chase the carrier of the football, who runs with it until tackled or until the ball is thrown away. In the course of the game the ball may be thrown or kicked. The game was played often in Earlville.

The Cronin backyard extended west from their home approximately 70 yards to an unpaved, gravel-topped alley (running north and south). The house next door to the north, about 70 feet from the Cronin house, was owned by Donald Norton. The Norton backyard was 40 to 50 yards wide and also about 70 yards deep. The game was played in the Cronin and Norton backyards which adjoined. No formal boundaries marked the Cronin and Norton lots. A dirt pile, a picnic table, and a small tree were located about 30 yards west of the homes, and between them. The pile of dirt was 10 feet north of the picnic table; the small tree was 10 feet south of it.

The yard south of Cronin's was considered out of bounds due to the inhospitality of the yard owner. According to one witness, the alley to the west of the backyards was also considered out of bounds, for safety reasons.

Defendant testified that he was 15 years old at the time of the incident. He then was 5 feet, 2 or 3 inches tall and weighed 130 pounds. He was a sophomore in high school and did not work on the float. He lived near the Cronin residence. He said he saw the eighth graders "playing around" with a football and that "they asked [him] if [he] wanted to play." As this testimony was uncontradicted, he cannot be considered, as plaintiff suggested in oral argument, an interloper.

There were three disputed issues at trial: (1) where the tackle-the-football game was played; (2) what plaintiff and defendant were doing when they collided; and (3) where plaintiff and defendant collided. Regarding the first issue, Tim Slaughterback, plaintiff's witness, testified that the game was not played near the dirt pile, picnic table, or small tree, but that the game was otherwise practically without boundaries. Defendant testified that the game was played near the picnic table and dirt pile but not near the small tree. Two witnesses for defendant testified that the game was played near the dirt pile, picnic table, and small tree.

Regarding the second issue, Tim Slaughterback and the plaintiff testified that plaintiff was sitting or crouching, not playing the game, when defendant collided with him. By their account, when they arrived at Cronin's, the pizza was not ready. They played tackle the football for less than one hour. Then it was announced that the pizza was ready and the game ended. Plaintiff and Tim Slaughterback went over near the picnic table for some potato chips, and were talking with two girls. Defendant and an unidentified person were seen playing catch with the football. Plaintiff had been sitting or crouching for five minutes when defendant, going out for a pass, ran him over, falling on plaintiff's back, crushing his head and chest to the ground between his legs. Tim Slaughterback said "watch out" just before the collision, too late to allow plaintiff to get out of the way.

Defendant, however, related that plaintiff was hurt during the tackle-the-football game. By his account, plaintiff was trying to catch or pick up the football when defendant, trying to tackle him, hit him head on, causing the injuries. Two witnesses for defendant testified that plaintiff was injured after he had picked up the football during the game, was chased by defendant, and was caught and tackled from behind.

Dr. James Wilson testified that plaintiff's injuries, a compression fracture of the L1 and L3 vertebrae, were caused by a "pretty severe force." He said the force causing the injury was "either a direct axio force straight down" or a "flexion" force bending plaintiff forward. Plaintiff's father testified that he overheard defense counsel ask defendant "about the dirt pile in the Cronin yard" during a recess in the trial. Defendant's response, according to plaintiff's father, was "`I seem to remember him sitting there, but I wasn't watching him, I was watching the ball.'" The credibility of one of the defendant's occurrence witnesses was reduced when it was brought out, on cross-examination, that defendant, in a prior recorded statement, had quoted this witness as saying he was not present at the time of the collision. The credibility of the second defense occurrence witness was also reduced when he readily pointed out, on cross-examination, the place where plaintiff was tackled, because in a prior statement he had been unable to remember where the tackle happened. (On redirect examination, he said he marked only the general, not exact, location of the tackle.)

Regarding the third issue, plaintiff and Tim Slaughterback related that plaintiff was sitting just to the southeast of the dirt pile, facing the picnic table, while seated or crouched, when defendant collided with him. One defense witness placed plaintiff near the dirt pile when he was tackled; the other and the defendant placed plaintiff further away from the dirt pile and picnic table.

The jury viewed a series of pictures which generally showed the backyard area of play. The occurrence witnesses diagramed their version of events for the jury in not-to-scale drawings. These exhibits are part of the record on appeal, have been ...


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